Reynoso v. Coombe

241 A.D.2d 738, 663 N.Y.S.2d 1016, 1997 N.Y. App. Div. LEXIS 7467

Opinion

Appeal from a judgment of the Supreme Court (Ledina, J.), entered October 29, 1996 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for failure to state a cause of action.

Petitioner was found guilty of violating a prison disciplinary rule prohibiting lewd exposure. He commenced this CPLR article 78 proceeding challenging the administrative determination of guilt on procedural and substantial evidence grounds.

In lieu of serving an answer to the petition, respondents moved to dismiss the proceeding in which they refuted petitioner’s claims. Supreme Court granted the motion and petitioner appeals.

Respondents should have been afforded an opportunity to serye an answer to the petition with relevant exhibits, including a copy of the transcript of the disciplinary hearing, before Supreme Court addressed the merits of the proceeding. The matter must be remitted to Supreme Court for this purpose (see, Matter of Scott v Commissioner of Correctional Servs., 194 AD2d 1042, 1043).

Mikoll, J. P., Crew III, White, Spain and Carpinello, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court where respondents will be permitted to serve an answer within 20 days of the date of this Court’s decision.